TC Heartland (2017) didn’t kill forum shopping—it changed its zip code. Eight years later, the map looks different, but the incentives behind venue selection remain much the same. Patent plaintiffs adapted, and so did defense counsel. Understanding the map is still half the game. Standard-essential patent (SEP) cases, for example, have doubled in the past decade, but the center of gravity has started to shift.
In TC Heartland, the Supreme Court held that patent defendants are considered to “reside” in their state of incorporation. Forum shopping has continued since TC Heartland, but tactics have changed. This blog post breaks down the recent changes, the motivations behind them, and their strategic implications for defendants.
1. The New Geography
Eastern District of Texas
Prior to 2017, the Eastern District of Texas dominated patent litigation in the United States. According to Lex Machina and Unified Patents data, EDTX received around 1,600–1,700 patent cases that year, out of approximately 4,500–4,600 total filings nationwide, about 35-40% of all filings. Since TC Heartland, a few other venues have siphoned off a portion of the total caseload.
District of Delaware
Delaware in particular has become a popular venue. Most technology companies are incorporated in Delaware. While Texas has sought to compete—and has attracted the likes of Tesla—Delaware continues to dominate corporate filings. This makes service of process through registered agents quite straightforward. While patent law is federal, Delaware’s corporate reputation gives plaintiffs confidence that their cases will be adjudicated competently and efficiently. This has resulted in a marked uptick; Delaware accounted for about 20-23% of filings in 2022-2023.
Western District of Texas
The Western District of Texas (WDTX) has also seen a marked uptick in filings. Judge Albright, who sits in Waco, has seen the bulk of WDTX’s filings, with a fast docket and plaintiff-friendly scheduling. WDTX now accounts for around 14% of patent case filings, down from its peak of 25% in 2021. Even with the decline, WDTX is one of the country’s most popular venues.
Overall Picture
The net result of TC Heartland has been a patchwork of filings across the country, often segregated by defendant type. Cases filed against foreign manufacturers overwhelmingly still take place in EDTX. Because TC Heartland addressed the residence of domestic corporations, it did not directly implicate defendants not incorporated in any U.S. state.
Because foreign defendants aren’t covered by TC Heartland, plaintiffs can still file anywhere—and they often pick Texas. This is because foreign companies are not “residents” under § 1400(b). In 2022-2023, roughly 60-70% of patent cases against foreign defendants were filed in Texas (EDTX + WDTX). EDTX—long known to favor plaintiffs—continues to dominate with such defendants, although WDTX, with its ‘rocket docket’ has gained ground. This contrasts with domestic companies, which now face a more diverse geography.
2. What Drives Plaintiffs Now
Plaintiffs now consider a variety of factors when deciding where to file patent cases. In pre-TC Heartland days, it was mainly about perceived plaintiff-friendliness. Now, other factors such as speed, judge-specific predictability, and presence play a role. We break each of these down.
Patent plaintiffs are overwhelmingly concerned with speed. Volume filers value quick settlements. The faster the docket, the sooner leverage builds. Thus, certain courts like Judge Albright’s in Waco are seen as advantageous from a plaintiff’s standpoint, regardless of what juries are likely to award. After all, most patent cases settle well before getting to a jury.
The second factor is judge-specific predictability. Plaintiffs don’t like litigating under substantial uncertainty. A judge who may grant a motion to dismiss or an extension could be severely disruptive to the plaintiffs’ business model. Thus, plaintiffs prefer to litigate in known arenas, ideally in front of judges who are likely to let things play out.
The third factor is local presence. Most American technology companies, for example, are incorporated in Delaware, but have their principal place of business in the Northern District of California. Following TC Heartland, venue is proper in each of these locations. Non-U.S. companies generally lack these ties, and therefore often default to plaintiff-friendly districts.
One caveat is that plaintiffs can be highly creative in seeking their preferred venue. Experienced litigators may add defendants’ subsidiaries, distributors, or their affiliates. Given that at least some of these are likely located in Texas, these creative workarounds enable filing in either EDTX or WDTX, both of which are plaintiff-friendly. All defendant types—foreign and domestic—must now prepare their jurisdictional defenses early.
3. Strategic implications for defendants
How should patent implementers make sense of these major changes? What tactics are likely to yield the best results as patent-litigation geography continues to shift? A few things to consider.
Venue and Jurisdictional Defenses
Venue motions are powerful but costly. TC Heartland would seem to invite venue challenges. After all, the case’s holding gave a solid framework for evaluating when venue is proper. However, things are not so simple. Motions to transfer under § 1404(a) are costly, time-consuming, and have varying rates of success by district. For example, transfer success rates hover around 40% in Delaware but below 20% in WDTX. In nuisance cases—which constitute a majority of patent filings in some districts—it may not be worth the hassle. Defendants are often better off putting their efforts into aggressive negotiations.
In sum, motions to transfer can be a good strategy, but only under certain conditions. The value of the case has to be high enough to justify the cost of filing the motion. There must also be a legitimate basis for the transfer, such as the defendant being incorporated or headquartered elsewhere. Defendants should also consider how the same court has ruled on such motions in similar cases in the past. Importantly, defendants should bring such motions early, or waive their rights to challenge.
Multinational Defendants
Foreign defendants face steeper odds in Texas. Non-U.S. defendants are overwhelmingly still sued in Texas, which has historically been plaintiff-friendly. This plaintiff-friendliness extends to motions to transfer. For example, while transfer success rates hover around 40 percent in Delaware, they are below 20 percent in WDTX. Foreign parent companies whose U.S. subsidiaries are co-defendants may have stronger grounds for transfer.
In aggregate, foreign defendants are at a slight disadvantage against their domestic counterparts. Such defendants should acknowledge this reality and adopt strategies that are likely to yield results in Texas.
Importance of Coordination
Coordination beats reaction in the new patent world. Defendants should make strong efforts to coordinate with local counsel. Given the potential to be sued somewhere other than EDTX, smart defendants will have counsel engaged in the relevant jurisdictions. They should also make sure to coordinate timing between the Patent Trial and Appeal Board (PTAB) and District Court and use the calendar to their advantage.
4. Conclusions
The new patent-litigation reality is upon us. Plaintiffs have already adapted, tailoring venue choices to defendant type and case value. Gone are the days when almost all litigation took place in the Eastern District of Texas. The question now is whether defendants will adapt and develop strategies for defending litigation across a broader set of venues.
Eight years after TC Heartland, the venue rules are settled—but the strategy around them is not. Those who master venue strategy will control not just where, but how, their patent disputes unfold.
Disclaimer: This blog is for informational purposes only and does not constitute legal advice. Reading or interacting with this content does not create an attorney–client relationship. You should consult a qualified attorney for advice regarding your specific situation. Mehaffy, PLLC disclaims all liability for actions taken or not taken based on this blog.